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- Title
BEYOND RIGHTS AND WELFARE: DEMOCRACY, DIALOGUE, AND THE ANIMAL WELFARE ACT.
- Authors
Eisen, Jessica
- Abstract
The primary frameworks through which scholars have conceptualized legal protections for animals--animal "rights" and animal "welfare"--do not account for socio-legal transformation or democratic dialogue as central dynamics of animal law. The animal "rights" approach focuses on the need for limits or boundaries preventing animal use, while the animal "welfare" approach advocates balancing harm to animals against human benefits from animal use. Both approaches rely on abstract accounts of the characteristics animals are thought to share with humans and the legal protections they are owed as a result of those traits. Neither offers sustained attention to the dynamics of legal change in democratic states, including the importance of public access to the facts of animal lives, opportunities for affective storytelling, and multi-faceted public deliberation. This Article offers an alternative avenue for theorizing animal legal protections, drawing on Laurence Tribe's articulation of law as governed by an "evolving ethic," wherein successive shifts in legal and public consensus build upon one another in ways that are dynamic and not entirely unpredictable. Drawing on feminist, critical, and relational approaches to law and social change, this Article elaborates a vision of animal law as governed by an evolving ethic wherein legal transformation is deeply connected to the public availability of particular facts of animal use, emotional storytelling, and broader social relationships and power dynamics. The evolving ethic here proposed helps us to shift our focus from a pre-critical understanding of rights as hard boundaries to a view of rights as a product of dynamic social relationships; and to shift our focus from welfarist balancing calculations to more open-textured dialogue. By conceiving of animal law through the lens of the evolving ethic, we can break free of stale debates about the virtue of rights versus welfare and instead embrace both as tools in a dialogic toolbox deployed in a field of legal transformation that is better characterized by dynamism and dialogue than by teleological advancement toward a predefined goal. The Animal Welfare Act (AWA)--the central legal regime governing the experimental use of animals in the United States, forms the central case study. The AWA regime in its current form works to foreclose public deliberation over concrete cases.
- Subjects
UNITED States; ANIMAL Welfare Act (U.S.); ANIMAL rights; WILDLIFE conservation; UNITED States. Dept. of Agriculture; FREEDOM of Information Act (U.S.)
- Publication
University of Michigan Journal of Law Reform, 2018, Vol 51, Issue 3, p469
- ISSN
0033-1546
- Publication type
Article
- DOI
10.36646/mjlr.51.3.beyond